Dario Vacirca examines efforts to prosecute ongoing crimes against Australia’s First Nations.
Published in Issue 554 of The New Internationalist, ‘Treaty: Indigenous Sovereignty in Australia’, February 2025
Djuran Bunjileenee, aka Robbie Thorpe, doesn’t mince his words. The Krautatungalung elder’s critique of Australia’s treatment of its First Peoples is as raw as it is necessary. ‘It’s a bloody oath, mate,’ he says. The phrase is familiar Australian colloquial, but it takes on a darker meaning under Thorpe’s lens, connoting the ongoing genocide embedded in this country’s blood-soaked foundations. The Australian nation, he argues, is built on a genocide that it continues to perpetuate through policies that strip Aboriginal people of their land, autonomy, and ultimately of their lives. ‘The system itself is the criminal here,’ he explains.
Thorpe has dedicated his life to exposing this criminality on the part of the state. Along with allies including his mother, Gunditjmara elder Aunty Alma Thorpe, and niece, Senator Lidia Thorpe, he has instigated various legal cases before Australian courts arguing for the state’s culpability. Most notably, in July 2024 at the supreme court of Victoria, he sought a judicial review after his attempt to prosecute King Charles III for ongoing offences in an Aboriginal genocide was blocked. He also made a submission to the Senate’s constitutional affairs legislation committee. This included a charge sheet and summons for Attorney-General Mark Dreyfus, accusing him of complicity in genocide against Aboriginal people – by failing to negotiate a treaty seeking consent, and by failing to remove the requirement of his approval for any Aboriginal genocide charges.(1)
Genocide, as defined by the UN convention which has codified the crime in international law since 1951, includes acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Among these are killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, reproductive control and/ or the forcible transfer of children of a certain group. By every measure, Australia qualifies. Its theft of land, systemic removal of children, and disproportion- ate violent imprisonment are not relics of history but contemporary realities.
Massacres of Indigenous people were carried out systematically across the country from the earliest days of colonization. Records document at least 270 massacres between 1788 and 1930, with tens of thousands of Aboriginal and Torres Strait Islander lives lost. In some regions, entire communities were wiped out.(2) These atrocities were not random, but deliberate acts of violence intended to clear the land of its original inhabitants for settler use. First Nations populations, once estimated at 1.5 million before invasion, were reduced to fewer than 100,000 by the early 1900s.(3)
Other policies sought to eliminate First Nations people by different but no less violent means. Between 1910 and the 1970s, it is estimated that one in three Aboriginal children were forcibly taken from their families and communities and made wards of the state – a systematic removal that is now referred to as the Stolen Generations.(4) The resulting intergenerational trauma continues to profoundly impact Aboriginal communities today. Yet the genocide also continues into the present – for example in the form of dis-proportionate deaths in custody. Since the 1991 Royal Commission into Aboriginal Deaths in Custody, over 500 Aboriginal and Torres Strait Islander people have died in police detention or prison. Aboriginal people make up just over three per cent of Australia’s population, but represent 30 per cent of the prison population. Four per cent of these prisoners die in incarceration.
To date, no convictions have been made of police officers involved in these killings.(5) The discrepancies in levels of care for Aboriginal and Torres Strait Island resulting from the systemic racism of the healthcare system, mean that many see hospitals as places to ‘go to die’.
‘Genocide in Australia has been continuous,’ Thorpe says. ‘They’ve never stopped trying to erase us.’ This multigenerational nature of the crime is central to the legal cases Thorpe and his allies are pursuing. By linking past atrocities to ongoing policies, they are making clear that an intent to destroy has never abated – it has simply evolved into new forms.
Litigating the law
Government inquiries in other settler-colonial nations like Canada have affirmed the state’s complicity in genocide against Indigenous populations through historical and persistent human rights violations. There is, however, little precedent for legal prosecution, and Thorpe has faced relentless obfuscation. Although Australia is signatory to the Genocide Convention, its legal system is at heart designed to protect the interests of the Crown, and has consistently thrown out cases on grounds of ‘sovereign immunity’ – a clause which protects state actors from criminal prosecution. The fiat system, a procedural requirement for the Attorney-General (the Crown’s highest representative in Australia) to consent to a case, gives the state effective impunity.
Accordingly, Thorpe’s team have launched a series of cases attempting to challenge these limitations, including a writ filed in April 2024 by Uncle Robbie and Aunty Alma Thorpe accusing the state of genocide under the Genocide Convention. During an opening statement at the ‘Camp Sovereignty’ protest site in Melbourne’s botanical gardens, where he invited the International Criminal Court (ICC) to intervene, Uncle Robbie argued that Australia is ‘demonstrably unwilling and unable’ to be held accountable for these crimes.
A concurrent bill proposed by Senator Lidia Thorpe in 2024 sought to abolish systemic legal protections and bring Australian law into alignment with international obligations. Summarily dismissed by the Senate in November, the bill tabled amendments to the criminal code that would enable genocide to be prosecuted domestically, without relying on the state’s approval.
Complicity, local and global
In his opening statement at Camp Sovereignty, Thorpe summarized decades of political inaction, claiming that ‘parliamentarians intended not to recognize our sovereignty’. His team has subsequently invoked the 1998 Rome Statute, the treaty which established the ICC and which stipulates that the court can step in where states are unwilling or unable to
act. This could allow the case to bypass a domestic system which Thorpe describes as ‘criminally complicit’.
Such appeals to the ICC highlight the importance of international legal mechanisms in addressing crimes that domestic systems refuse to prosecute. Yet the ICC and the International Court of Justice (ICJ) – which deals with cases against countries rather than individuals – are themselves stymied by powerful nations, including Israel and the United States, which openly reject their jurisdiction.
Such obstructionism undermines the core principles of international justice. For example, Israel’s refusal to recognise ICC investigations into alleged war crimes in Gaza and the West Bank mirrors the United States’ long-standing rejection of ICC authority. The US has even gone so far as to impose sanctions on ICC officials and threaten retaliation for investigations into American actions in Afghanistan. Thorpe sees these instances as part of a broader pattern of impunity that encourages settler-colonial states like Australia to flout international law. ‘If the big players don’t respect the courts, why would anyone else?’ he asks. It also undermines efforts to address genocide and other breaches of international law globally. ‘The refusal of nations like the US and Israel to recognise international law creates a cascading effect, emboldening other states to act with impunity,’ says Lindon.
Such a crisis of accountability underscores the urgency of leveraging international courts to address crimes like those perpetrated against Aboriginal people. ‘Australia won’t act on its own,’ Thorpe adds. ‘The only chance for justice is to drag these lying, cheating thieves to an international stage where they can’t hide.’
As such, Thorpe sees Australia’s genocide as part of a global pattern of settler-colonial violence, drawing parallels between the treatment of Aboriginal people and the atrocities in Gaza. ‘Australia has been very much a secret country. We are one of Israel’s greatest supporters, providing military aid and economic support,’ he says, highlighting the production in Australia of parts for F-35 fighter jets used in attacks on Palestinians. The genocide in Gaza reflects structures of violence and impunity similar to those in Australia, in which colonial states justify atrocities through legal frameworks, while stripping Indigenous peoples of their rights.
The path forward is clear but fraught with challenges. While Thorpe’s various domestic cases all await judgments, referrals and hearing dates, a draft is in progress to the prosecutor of the ICC claiming that the court has jurisdiction in Australia. As Thorpe sees it, the fight for justice on genocide is bigger than this crime alone, inseparable from the fight for environmental justice. ‘The land has the last say – the land is more powerful, we must listen to it, protect it,’ he warns. ‘The path of genocide and ecocide ends with suicide, for everyone.’
He therefore calls on all Australians to confront their own complicity in the system. ‘People gotta start doing something about it,’ he says. ‘Otherwise, they’re the beneficiaries of genocide here.’ His words are a challenge to every citizen of Australia, cutting through the denialism that pervades its society. ‘That’s the trajectory this country has always been on. Want to do something about it? Then do it yourself.’
Though he remains skeptical of the possibility of change, Thorpe refuses to stop speaking out. And his message is clear: anything less than immediate action is complicity. For Thorpe, the fight for justice is not just a legal or political battle,
it’s a moral imperative. The bloody oath of Australia is written in the blood of its First Peoples. Now is the time to rewrite it.
DARIO VACIRCA IS AN ARTS AND CULTURE WORKER AND COMMUNITY ORGANIZER WORKING IN NAARM (MELBOURNE) ON THE UNCEDED LANDS OF THE KULIN NATIONS
(1) For more information on the legal cases see: crimesceneaustralia.com (2) Lorena Alam and Nick Evershed, ‘The Killing Times: The Massacres of Aboriginal People Australia Must Confront’, The Guardian, (3) March 2019, a.nin.tl/1Z 3 R Miller, J Ruru, L Behrendt & T Lindberg, ‘Discovering Indigenous Lands’, Oxford University Press, Oxford, 2012 (4) Healing Foundation, Who Are the Stolen Generations?, a.nin.tl/21 (5) Alannah Hunt, ‘The Royal Commission Report into Aboriginal Deaths in Custody Shows a History of No Police Accountability’, IndigenousX, 22 May 2024, a.nin.tl/22.